Copyright Protection and Distance Learning Michael I Shamos

Copyright Protection and Distance Learning Michael I. Shamos, Ph. D. , J. D. Co-Director, Institute for e. Commerce Carnegie Mellon University Special Counsel, Reed Smith, LLP

Topics • What is distance education? Copyright problems? • Economics of information – What happens when the cost of copying is zero? • National policies and statutory schemes – When should private copyright interests give way to educational needs? • Copy protection/monitoring

What is Distance Education? • Learning outside the physical presence of an instructor (includes correspondence courses) • Learning outside the classroom • Web delivery of courses. DEMO • Network-mediated interaction • Self-paced (asynchronous) learning

Distance Education Modes • Synchonous – Live classes at a distance, e. g. videoconference – Videotape, CD classes at a distance with mentoring • Asynchonous – Videotape, CD, webcast, student-paced – Online computer-mediated instruction, computer exams

Virtual Education: A Vision DOW CHEMICAL CORP ORGANIC COURSE ACCREDITS COURSES MIT PROF. DOE’S ORGANIC COURSE AMERICAN CHEMICAL SOCIETY $ BOISE STATE U. PROF. SMITH’S ORGANIC COURSE $ $ STUDENT AT COMMUNITY COLLEGE ACCREDITS CURRICULA MAINTAINS TRANSCRIPTS COMPANY EMPLOYEE AT-HOME STUDENT

Where Does Distance Ed Content Come From? • Pre-existing materials – Public domain (old works, government works) – Non-digital – Digital • Web pages, Power. Point presentations, images • Archive. org, e. g. www. info. gov. hk/ipd/ • Online course collateral • Courseware: software for mediating education • Problem: cost of web copying is nearly zero

Universal Library • A free-to-read resource for the world. DEMO – Search • The Million-Book Project – 1, 000 books to be digitized in mainland China – U. S. National Science Foundation provides $4 million HK for digital scanners – Carnegie Mellon provides software, indexing, web hosting • No high school has 1 million books • CMU does not have 1 million books

Issues • Distance ed copyright is a matter of national policy • Use of pre-existing materials in distance ed • Materials generated for distance ed • Rights of creators v. their institutions • Cross-border issues

Mechanisms • Distance ed-friendly copyright statutes • Fair dealing (US: fair use) • Collective rights societies • Individually-negotiated agreements • Stated royalty (e. g. Copyright Clearance Center) • Statutory (US: compulsory) licensing – Fixed-rate – Tribunal

Fee Collection • Free use (nobody pays -- voluntarism) • Physical library analog (Net. Library) – One network user paid copy • Micropayments (per page view) • On-demand (per work, per course, etc. ) • Fixed-rate (HBO model) • Public-use model (government pays)

Current U. S. Law (17 U. S. C. § 110) • Not an infringement to perform or display a work – by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution … – unless, in the case of a motion picture or other audiovisual work, the performance … is given by means of a copy … not lawfully made … and that the person responsible for the performance knew or had reason to believe was not lawfully made

U. S. TEACH Act (Not Yet Passed) • Would exempt certain performances or displays for educational uses • Would not apply to – “a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or – a performance or display that … by … a copy … not lawfully made … and the [transmitter] … knew or had reason to believe was not lawfully made … or – an amount comparable to that which is typically displayed in the course of a live classroom session

U. S. TEACH Act (Not Yet Passed) • Applies where – (A) the performance or display is made by … an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body, an accredited nonprofit educational institution, or a nonprofit library; – (B) the performance or display is directly related and of material assistance to the teaching content … ; – (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to (i) students officially enrolled in the course; or (ii) officers or employees of governmental bodies as a part of their official duties or employment

Australia • Digital Agenda Act 2000 • New statutory licenses – material is used for educational purposes – equitable remuneration paid to the relevant collecting society – can copy reasonable amounts of electronic material for students (e. g. over a closed network) – can copy and communicate larger amounts of electronic material that can't be obtained within a reasonable time at an ordinary commercial price by the staff or students. – amount of remuneration negotiated by institution and collecting society or copyright owner. Otherwise, the Copyright Tribunal determines amount. • Required electronic use notice

Japan • Copyright is under the Ministry of Education and is subservient to education

Japan • Extensive statutory (compulsory) licensing for educational use, e. g. – – – Textbooks Translations Missing author Broadcasting to schools Examination questions Nonprofit activities • (U. S. has no compulsory license for literary works) • Royalty set by Agency for Cultural Affairs • Numerous collective rights associations

Japanese Digital Library Proposal • Authors owe a debt to past works and must contribute to future ones. • Everyone has the right to use the work of another, but must pay for it (universal compulsory license). • Permission of the author is required when a moral right is involved. • User must give credit to the source.

Singapore • 1999 statutory revisions • Without permission of copyright owner, allows: – Copying by libraries & educational institutions – Network use; no safeguards required – Translation and reprint compulsory license

University Policies • Prof. Jones at Harvard signs a contract with Distance U. to provide 30 hours of videotape of his well-known Harvard course for distance ed purposes • Harvard: professors can’t teach elsewhere without permission • Harvard: the IP in a course belongs to Harvard • Harvard: Jones is trading on, and diluting, the Harvard name HK INTELLECTUAL PROPERTY OFFICE FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

University Policies • Jones: I’m not teaching; I don’t interact with the students enrolled at Distance U. • Jones: What’s the difference between videotape and a textbook? I spent less time preparing the videos. • Jones: I’ve been on TV; I’ve given interviews. Harvard never objected before. Why now? • (Actual situation involving Arthur Miller at Harvard Law School. Moratorium pending discussions. ) HK INTELLECTUAL PROPERTY OFFICE FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

University Policies • University owns everything – Work made for hire – But: “teacher exception” (US 1909 Act, not in 1976 Act, but judicial) • Shared ownership – It’s only fair • Faculty own everything (New York University) – University exists to create and disseminate knowledge HK INTELLECTUAL PROPERTY OFFICE FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

American Association of University Professors (AAUP) Statement on Copyright • “Prevailing academic practice”: faculty member owns copyright in works created independently “for traditional academic purposes, ” regardless of the medium in which the works appear • Whoever owns the copyright, the institution may require reimbursement for any unusual financial or technical support …in the form of royalties or license to use HK INTELLECTUAL PROPERTY OFFICE FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

The Web Manifesto • It’s free • No one owns it • No one controls it • You won’t get caught • If you do, litigation is too costly • If we share, we all benefit • Result: wholesale piracy

Digital Rights Management • Prevent copying in the first place – Copy protection systems – Secure browsers • Make sure it’s paid for – IP rights management systems • Detect copying – Digital watermarking – Cybersurveillance

Digital Watermarks SOURCE: BYTE MAGAZINE

Digital Watermarks + Watermark Original image HK INTELLECTUAL PROPERTY OFFICE Watermarked image FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

Digital Watermarks Most transformations do not affect or obliterate a spread-sprectrum watermark A big user: Corbis HK INTELLECTUAL PROPERTY OFFICE FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

Cybersurveillance Countermeasure: When Cyveillance visits your site, deliver sanitized pages! SOURCE: CYVEILLANCE

Why Digital Rights Management Must Fail • All senses are analog • Media and the Internet are digital • Copy protection systems ultimately fail because – Recording medium is digital – Must be converted to analog for human sensation – The analog signal can be copied and re-digitized • (Fails to stop piracy; succeeds at generating revenue)

Q&A HK INTELLECTUAL PROPERTY OFFICE FEBRUARY 5, 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

Cost of Copying ($HK) • 500 -page book (2000 characters/page = 1 megabyte = 1 floppy) • Xerox® copy • 250 sheets @ $0. 25 = $62. 50 • Buy the paperback: $62. 50 HONESTY: LOW COST • Internet • Cost of copying 1 megabyte = 1 minute of electricity @ 300 watts = 5 watt-hours = 0. 005 k. Wh @ $0. 80/k. Wh = $0. 004, 4/10 of a cent • Amortization of $25, 000 PC for 1 minute = $8, 000/500, 000 = $0. 016 Four times as much! Total = 2 cents • At $2000/hour = 100, 000 pages • Buy the paperback for $62. 50? NO! • Digital copy for $30. 00? NO! • Buy a digital copy for $1. 00? YES ENFORCEMENT: HIGH COST HONESTY: HIGH COST

Economic Effect of Copying Cost • Cost of copying 0 • Cost of distribution 0 • Cost of advertising 0 • Cost of initial production human resource • Investment is lower, so return can be lower • Therefore, the VALUE of digital property goes DOWN • Only way to make money: huge number of copies • Micropayments, digital rights management